Randall v. Preston

The opinion of the court was delivered by Royce, J. The report of the commissioners on the estate of A. B. Thompson had not been recorded at the time of the trial, and hence the only evidence that could be legally admitted to show what the action of the commissioners had been, would be the report made by them to the Probate Court, if it could be obtained. The report was the best evidence in existence of the facts contained in it. In Lowry v. Cady, 4 Vt. 504, it having been ascertained that a judgment had not been recorded, the files and docket minutes were admitted as evidence of a judgment and execution. In the opinion delivered by Williams, J., he says : “ As the judgment was not rendered, the court was justified in receiving other evidence of the same than an exemplified copy of the record.” The plaintiff claimed that his intestate had a lien ■ upon the horse in controversy, to secure her for his keeping. The defendant claimed that she did not have any such lien, and, as tending to show that no such contract was made between the intestate and Eben. Thompson, the general owner of the horse, by which such lien was secured, as the plaintiff’s evidence tended to show, [203] offered said report as evidence tending to show that at the time the pretended contract was made, the intestate was largely indebted to Eben. Thompson. The evidence was admissible, and to be weighed by the jury upon the question as to whether any such contract was made or not. It is much less probable that any such contract would be made where the agister or keeper of an animal is the debtor of the owner, than it would be if there was no such indebtedness. The exception taken to the defendant’s being permitted to testify to the conversation had with the plaintiff after his appointment as administrator was not well taken. By section 24, c. 36, of the Gen. Sts. the defendant was a competent witness to all such acts and contracts as had been done or made subsequent to the appointment of the plaintiff as administrator. Dean v. Dean’s Estate, 43 Vt. 337. The portion of the testimony given by the defendant that was objected to, taken in connection with the use that the court instructed the jury they were to make of it, did not prejudice the plaintiff, and as a part of the conversation it was not error to admit it, with the instructions given as to its use. The only remaining question is as to the sufficiency of the notice under which the defendant was permitted to put in his evidence of justification. It has been repeatedly held that, while the statute which allows special matter to be given in evidence under the general issue and notice dispenses with the form of a special plea, it does not dispense with the substance of such a plea. While it is required that such a notice must be sufficiently definite and certain to apprise the opposite party of the facts relied upon, and which he will endeavor to establish by evidence, and that such facts, if found, will constitute a defence, it is not required that the facts should be stated with that certainty, formality, and technicality that would make a good special plea. The object in changing the common law by dispensing with special pleas in cases provided for by the statute, was to simplify the-pleadings, and at the same time to give parties, by the notice required, all the substantial benefits, as far as notice and opportunity for defence are concerned, that they would have had if a plea had been filed. The notice in this case contains all the substan [204] tial elements of a good plea. It is quite as good in form and in substance as the notice was in Edwards v. Harrington, 45 Vt. 63, which the Supreme Court held sufficient. Judgment affirmed.